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Friday, September 21, 2012

Jury Nullification Does Work -- If You're a White Rastafarian

Posted By on Fri, Sep 21, 2012 at 8:09 AM

click to enlarge Would you put that thing away - NH UNION LEADER
  • NH Union Leader
  • Would you put that thing away

The right thing isn't always the legal thing, as many moralists venturing inside a courtroom will discover.

Mandatory minimums mean a judge must sometimes hand down a stiff sentence. The law is the law and it has left no choice, unsavory as it might have been.

But there is another way, another last line of defense: Pin all your hopes on the jury ignoring the law, agreeing with you that you've been wronged, and bailing you out.

Sounds crazy, but the practice -- jury nullification -- is real. And it does work: Last week, a 59-year old Rastafarian was cleared of felony marijuana possession charges after the jury decided it just wasn't right to penalize him.

Granted, the Rastafarian is white and he lives in New Hampshire. But causes like this give Californians hope. As desperate and misguided as it may be.

Jury nullification is an important part of the marijuana movement. "Juries cannot be punished for their verdicts" is a slogan that can be seen on the walls of underground marijuana dispensaries in Oakland, and dispensed from the mouths of luminaries like Oaksterdam University founder Richard Lee (who has yet to test the theory in court).

It sounds desperate -- and, as any attorney would tell you, it is -- but it is a valid way to escape prosecution for a victimless crime, as long as you can find a willing jury.

That's what bailed out 59-year-old Doug Darrell. Darrell is a piano-tuner and harp manufacturer from a rural New Hampshire hamlet. Darrell's turn in the criminal justice system began unluckily: A National Guard helicopter flying over his house in 2009 spotted some pot plants in his backyard, leading to his arrest and prosecution on felony marijuana charges.

But then things swung his way. First, he had a member of the Free State Project on his jury. Members of the FSP want to start a new libertarian society in the Granite State, and this particular Free Stater actively lobbied her fellow jurors to vote to acquit.

Second, the judge in this case instructed jurors prior to deliberations that they had the tool of jury nullification at their disposal. This is very significant. Usually, a judge tells jurors that in fact nullification is not in their power. "Judges in most states, including California, tell juries they have no power to disregard the law," the Chronicle's Bob Egelko reported earlier this summer.

And third, Darrell is a white man with no criminal record, according to the New Hampshire Union Leader. That can't hurt.

So he got off, a far-flung but nonetheless important example that nullification is a real thing that can be used in a courtroom citizens' revolt.

Here in California, it's been less reliable. No marijuana cases of which SF Weekly knows have been overturned by the jury. The most recent example is 44-year-old San Franciscan William Lynch, who was acquitted of felony assault charges in July after jurors heard that the elderly man he assaulted was the priest who had sodomized him as a boy 35 years ago.

Also at issue is the plea deal. When faced with the possibility of a decades-long sentence, many criminal defendants will accept a shorter stint in jail rather than run the risk of rotting there, which sidesteps the jury altogether.

Is the Drug War as reprehensible as a pedophile priest? Are people put away for growing a plant as much a victim as a violated child like Lynch? Hoping that your jurors agree enough to disregard the judge's instructions could work, but good luck.

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About The Author

Chris Roberts

Chris Roberts has spent most of his adult life working in San Francisco news media, which is to say he's still a teenager in Middle American years. He has covered marijuana, drug policy, and politics for SF Weekly since 2009.


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